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In the shade of some scraggly trees, a man zipped guns into body bags. Each of the weapons, which had been seized by the prosecutor of the Serious Crimes Unit in East Timor, was tagged and each tag had been recorded in a database. Looking up from his packing, the man remarked, “People worry about these but,” and he nodded his head to a room across the yard, “the really dangerous stuff is over there.” “Over there” was the room storing evidence collected by the prosecutor’s staff: statements and photographs and audio recordings of interviews with witnesses and collections of documents. Dangerous records, indeed.

A few months later and half a world away, Muhinda John was walking home down a street in Kabunga town, Rwanda. Suddenly he was hit on the head with a metal bar and died. At his funeral mourners were told that “onlookers shouted joyfully” as Muhinda was killed. The dead man was widely known for testifying openly before the International Criminal Tribunal for Rwanda, and the assumption is that he was killed because of his testimony. The records of his testimony, held by the ICTR, now speak for him. Dangerous records, too.

This report looks at the records created by five temporary international criminal courts: the International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR), the Special Court for Sierra Leone (SCSL), and the “hybrid” courts of Kosovo and East Timor. The word ”court” to describe these diverse bodies is misleading. While these institutions do include a traditional court that hears and adjudicates cases and may include a court that hears appeals, they encompass far more than that. These courts include the offices of the prosecutor, which in turn includes staffs of investigators. The prosecutor may also have field offices. The court may have associated offices of public defenders. The registrar, in addition to the duties of court operation, may run a detention center or a center for victims. Most of the courts have public outreach arms, some with sophisticated broadcast operations; these outreach offices may be located in the city with the court or may be in the locations where the events that occasioned the tribunal took place. To use a U.S. analogy, a temporary international criminal court includes the Federal District Court and the Supreme Court, the Criminal Division of the Department of Justice, the Federal Bureau of Investigation, the Federal Witness Protection Service, the Bureau of Prisons, and perhaps the office of a public defender.

The temporary courts utilize a blend of common law and civil law approaches that is unique, differing both from each other and from the laws of the nation-states. The Kosovo court, for example, operated until 2004 under the general civil law process that has the prosecutor submit virtually all the records of the case to the court for inclusion into its records. The Special Panels in East Timor, on the other hand, had much less of the prosecutor’s records submitted to them, leaving a relatively thin court record. This means that the nature of the courtroom records and the prosecutor’s records varies by the rules of procedure and practice adopted in the jurisdiction.

A notable feature of the temporary courts is the frequency with which the court proceedings are closed to the public, whether for closed hearings or motions or other business, leading to a significant volume of closed records. The ICTY staff estimates, for example, that 30% of the records in the judicial database that serves the court are restricted in some way. By contrast, the records of most court proceedings in nation-states have relatively few access problems, and the access issues arise in fairly specific types of cases such as those involving minors or sexual crimes. Add to the access problems with the court proceedings the security issues surrounding the records of the prosecutors, and it is obvious that the future archives of the international courts will have to address serious access problems.

This report provides a conceptual framework and makes recommendations for deciding what records of the tribunals to retain when these temporary bodies close their doors. The closures are at hand: the East Timor Specials Panels and Serious Crimes Unit closed in May 2005; the status talks on Kosovo are immanent in the winter of 2006; the Sierra Leone court is to close at mid-2007; and the ICTY and ICTR are to complete all proceedings by 2010. While each of the bodies are unique and their records could be evaluated separately, the temporary tribunals need to be understood as part of a broader historical picture that illuminates both the development of international criminal law and the new role of the United Nations as an instrumentality for international justice. Looking at the records of all the tribunals at once helps identify similarities in their context and content and clarifies the issues that will face the archivists who take custody of the records.

The United Nations must accept its responsibility to administer an international judicial archives for the permanently valuable records of the temporary tribunals. The original records, including the audio and video recordings, the electronic databases, the paper files, and the objects, should be located in one international judicial archives under the direction of the United Nations Archives and Records Management Section. Publicly available records of the courts should be copied and the copies donated to institutions in the countries affected or in regional institutions that the countries might designate. The objects and artifacts maintained by a tribunal, if not returned to a family, should be available for loan to institutions for educational exhibition purposes.

Records are saved for use. Deciding what records to save and where to save them are fundamental choices. The challenge is to plan the permanent archival program for the records, preserving them and making them available for users to explore the history of the courts and the tragic events they adjudicated.